Case Note & Summary
The petitioner, who was defendant No.3 in the original suit, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 20.12.2014 passed by the I Additional Civil Judge & JMFC, Athani in O.S.No.1811/2011. The trial court had dismissed the petitioner's application (I.A.No.V) seeking permission to file a written statement under Order VIII Rule 9 read with Section 151 of the Code of Civil Procedure, 1908. The suit was filed by the first respondent (plaintiff) for declaration of title, consequential relief, and permanent injunction in respect of suit schedule property. After issuance of summons, the defendants did not file their written statement within the stipulated period, and the matter was posted for evidence. At that stage, defendant No.3 filed the application on 18.11.2013, contending that he had changed his counsel, was unable to meet the advocate, and there was a delay in returning papers by the previous counsel. He argued that no prejudice would be caused to the plaintiff if permission was granted, whereas refusal would cause great damage to him. The plaintiff opposed the application. The trial court dismissed the application, leading to the present writ petition. The High Court, after hearing both sides, observed that the trial court ought to have taken a liberal view and allowed the application, as the delay could be compensated by costs. The court noted that the right to file a written statement is not absolute but should not be denied on technical grounds alone, especially when no irreparable prejudice would be caused to the plaintiff. The High Court set aside the impugned order and allowed the application, permitting the petitioner to file the written statement within two weeks from the date of receipt of the order, subject to payment of costs of Rs.500 to the plaintiff.
Headnote
A) Civil Procedure - Written Statement - Condonation of Delay - Order VIII Rule 9 r/w Section 151 CPC - The trial court dismissed the defendant's application to file written statement on the ground of delay. The High Court held that the trial court ought to have taken a liberal view and allowed the application, as no prejudice would be caused to the plaintiff that could not be compensated by costs. The court emphasized that the right to file written statement is not absolute but should not be denied on technical grounds alone. (Paras 5-8)
Issue of Consideration
Whether the trial court was justified in dismissing the application filed by the defendant under Order VIII Rule 9 read with Section 151 CPC seeking permission to file written statement after the expiry of the stipulated period.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 20.12.2014, and permitted the petitioner to file the written statement within two weeks from the date of receipt of the order, subject to payment of costs of Rs.500 to the plaintiff.
Law Points
- Order VIII Rule 9 CPC
- Section 151 CPC
- liberal approach to filing written statement
- condonation of delay
- opportunity of hearing
- prejudice to plaintiff
